Employment Law Hot Topics in the Health Care Setting

American with Disabilities Act (ADA) July 26, 1994 – applies to all employers with 15 or more employees July 26, 1994 – applies to all employers with 15 or more employees Prohibits discrimination against disabled individuals in critical areas such as employment, public accommodations, transportation, housing and communication Prohibits discrimination against disabled individuals in critical areas such as employment, public accommodations, transportation, housing and communication

ADA, cont. Disability – physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such impairment or being regarded as having such an impairment Disability – physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such impairment or being regarded as having such an impairment New activity in areas of stress/depression and mental impairment New activity in areas of stress/depression and mental impairment

ADA, cont. Requires “reasonable accommodation” by employers when employee brings it to their attention Requires “reasonable accommodation” by employers when employee brings it to their attention Employer may request medical certification/documentation Employer may request medical certification/documentation **LANDMINE** Asking health- related questions during an interview **LANDMINE** Asking health- related questions during an interview

Family Medical Leave Act (FMLA) Applies to all employers with 50 or more employees Applies to all employers with 50 or more employees Employees eligible after 1 year of service (1250 hours) Employees eligible after 1 year of service (1250 hours) Requires granting of leave up to 12 weeks per year for family emergency/illness Requires granting of leave up to 12 weeks per year for family emergency/illness

FMLA, cont. Biggest Challenges: Developing tracking system to ensure employees request leave under FMLA and that the leave is accurately tracked. Developing tracking system to ensure employees request leave under FMLA and that the leave is accurately tracked. Productivity: Cannot replace the individual – must keep the position open for them to return Productivity: Cannot replace the individual – must keep the position open for them to return Operational exposure Operational exposure

Civil Rights Act of 1964 Title VII Prohibits discrimination based on race, color, religion, sex, or national origin Prohibits discrimination based on race, color, religion, sex, or national origin Sexual harassment is considered discrimination Sexual harassment is considered discrimination Exponential expansion of claims and lawsuits over past 9 years Exponential expansion of claims and lawsuits over past 9 years

Title VII, cont. As of October 1998, law holds employers strictly liable for harassment by a supervisor if a tangible employment action occurs, regardless of whether the company was aware As of October 1998, law holds employers strictly liable for harassment by a supervisor if a tangible employment action occurs, regardless of whether the company was aware Involves a person of influence Involves a person of influence Quid pro quo Quid pro quo **HOT SPOT** Wrongful discharge based on retaliation **HOT SPOT** Wrongful discharge based on retaliation

Hiring/Firing Greatest vulnerability corporately Greatest vulnerability corporately $100,000 to defend employment cases, which is not covered by insurance carriers $100,000 to defend employment cases, which is not covered by insurance carriers

Issues Violence in the workplace Violence in the workplace Risk management Risk management